McFarland v. Lillard

• Decision Date: 25 June 1891
• Docket Number: 211
• Parties: MCFARLAND v. LILLARD
• Court: Indiana Appellate Court

28 N.E. 229

2 Ind.App. 160

MCFARLAND v. LILLARD

No. 211

Court of Appeals of Indiana

June 25, 1891

From the Miami Circuit Court.

Judgment affirmed.

R Kimple, L. Walker and W. B. McClintic, for appellant.

S. D Carpenter and J. W. Eward, for appellee.

OPINION

REINHARD, J.

Several errors are alleged in this cause, but as the merits of the appeal can be determined by the decision upon the sufficiency of the special verdict to support the judgment, we shall confine ourselves to that task alone.

The action was commenced before a justice of the peace, and was from there appealed to the circuit court, where the cause was tried by a jury and a special verdict returned, upon which over appellant's objection and exception, the court rendered judgment in favor of appellee.

The suit was by a real estate broker for his commission on an alleged contract to sell a tract of land for the appellant.

The special verdict is as follows:

"We, the jury, having been required to return a special finding herein, find the following to be the facts:

"1st. We find that on the 11th day of August, 1887, the defendant entered into a written agreement with the plaintiff of which the following is a copy:

"'MARION, Ind., Aug. 11th, 1887.

"'If you will sell 200 acres, 175 acres under cultivation, at $ 50 per acre, $ 2,000 down, balance 1 to 10 years' time at 6 per cent., with privilege of 80 acres more if said sale is consummated within 6 months from date, I agree to pay L. C. Lillard two hundred dollars in cash, or if failure is my fault, then the above commission is due.

"'GEORGE MCFARLAND.'

"Above land is situate in Jackson township, Miami county, Indiana.

"2d. That in pursuance of said contract, the plaintiff endeavored to find a purchaser for the land described in said agreement. That within two weeks after the date of said agreement plaintiff found a purchaser for said real estate, but under terms different from those mentioned in the above written agreement.

"3d. We find that the plaintiff in the month of August, 1887, informed the defendant that he had procured a purchaser for said real estate, and had agreed to sell the same to him, at and for the sum of twenty-five hundred dollars cash, and the remainder to be paid in two payments, and within three years from date.

"4th. We find that the defendant accepted said terms, and requested the plaintiff to send the purchaser, Allen J. Smith, to call and see him, the defendant, on the following Thursday.

"5th. We find that said Smith called upon the defendant at the time he was requested so to do and defendant accepted the terms of sale for said real estate, as made between the plaintiff and said Smith, and agreed to go with him to Peru on the next day to examine the title, and if the title was found to be satisfactory to execute the deed to said Smith for said real estate.

"6th. We find that on the night of the day said Smith called on defendant, he, the defendant, went to said Smith and informed him that his, defendant's, wife was dissatisfied, and that he could not make the trade; that he, defendant, expected the plaintiff would claim his commission for the sale of said land.

"7th. We find that the defendant, before the commencement of this suit, acknowledged to John W. Eward that he was indebted to the plaintiff for commission for the sale of said real estate.

"If, upon the above facts, the law is with the plaintiff, we find for the plaintiff and assess his damages at two hundred dollars and interest from the 1st day of September, 1887. If the law is with the defendant, we find for the defendant."

The appellant seeks to make a distinction, in the first place, between the case of an agent undertaking to sell and one undertaking to find a purchaser, claiming that in the case of an agent who undertakes to sell, he must not only find a purchaser, but must place the parties in such a position that the sale may be enforced between them by law.

We can not find any meritorious distinction between the two classes of cases. The broker, in either case, is required to do no more than find a purchaser. He can not do the selling unless specially authorized to do so by power of attorney. That must be done by the principal. The undertaking to "sell" in such cases is no more than an engagement to find a purchaser who is ready and willing to buy. Treat v. De Celis, 41 Cal. 202; Duffy v. Hobson, 40 Cal. 240; Goss v. Broom, 31 Minn. 484, 18 N.W. 290; Reynolds v. Tompkins, 23 W.Va. 229; see, also, Lockwood v. Rose, 125 Ind. 588, 25 N.E. 710.

The appellant next insists that before the appellee could recover he must show that he had effected a bargain and sale which was mutually binding between the parties, and as the contract to purchase was not in writing, it was void by the statute of frauds, and could not be enforced, and that consequently the appellee had failed to "sell," as contemplated by the contract.

In this view we can not concur. When the appellee had found a purchaser who was ready and willing to buy upon the terms proposed, he had performed his part of the contract, and the commission was due, although through the fault of the appellant the sale was not consummated.

The facts found show that it was the appellant who failed to carry out the contract of sale, and not the purchaser. If the appellant had been prevented from completing the sale by reason of the purchaser's taking advantage of his right under the statute of frauds, the appellant would have some room for complaint that the contract of his agent was not a binding one; but when the facts show, as they do here, that the only reason the contract was not binding was because the appellant himself refused to make it so, certainly he can not be heard to complain, and thus take advantage of his own fault.

A broker may recover for services rendered though the contract be in part void under the statute of frauds. Freeman v. Sabine, 18 Alb. L. J. 497; Dennis v. Charlick, 6 Hun 21; Redfield v. Tegg, 38 N.Y. 212; Cook v. Kroemeke, 4 Daly 268; Barnard v. Monnot, 3 Key. 203; Mooney v. Elder, 56 N.Y. 238.

The case of Love v. Miller, 53 Ind. 294, furnishes some color to appellant for the position he takes, but does not support him. In that case the agent furnished a purchaser and effected a sale of the real estate by written contract, which was mutually obligatory upon both vendor and purchaser. The vendee afterwards refused to execute his part of the agreement. The vendor refusing to pay the commission to his agent upon the sale, the latter sued him. The court held that the principal was liable for the commission because the agent had effected a sale that was binding on both parties, although not carried out by the purchaser.

We presume the court concluded that although the contract was repudiated by the purchaser, still if the vendor was not disposed to enforce specific performance under the contract it furnished no excuse to him for escaping the payment of compensation so fairly earned.

In the case at bar it is not the vendee who refused to carry out the contract of sale, but the principal himself.

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